The conceptual roots of the criminal responsibility gap in autonomous weapon systems

Kwik, J. (2023). The conceptual roots of the criminal responsibility gap in autonomous weapon systems. Melbourne Journal of International Law, 24(1). Retrieved from https://law.unimelb.edu.au/__data/assets/pdf_file/0008/4816367/Kwik.pdf

Abstract

One major reason for the controversy around autonomous weapon systems (‘AWS’) is the concern
that no criminal liability is possible for resulting war crimes. This article takes a comprehensive
look at one factor, the cognitive element of mens rea, and how and when characteristics specific
to artificial intelligence (‘AI’) can render it more difficult to assign criminal liability to the
deploying commander. It takes a multidisciplinary approach, considering both technical
characteristics of modern AI and realistic conditions under which AWS are used. The article finds
that modern AI primarily induces reduced perceivability through imperfect tracking of human
intuition, opacity and generic reliability metrics. It also finds that AWS make it easier to willingly
avoid acquiring cognition simply through inaction. Subsequently, it attempts to locate the exact
loci of the problem within criminal law’s spectrum of intent. This article finds that the epicentre of
difficulty lies at the intermediate level of risk-taking, and particularly situations of generic risk:
the condition where there is awareness only of a nondescript, indeterminate probability of
‘something going wrong’. In contrast, no-gap situations are identified higher up the ladder of
intent where there is purpose or virtual certainty, and judicious gaps lower down where we want
‘impunity’ for justified risk-taking and genuine accidents. Additionally, this article also considers
the dangers of manufactured ignorance, where the risk can theoretically be known but in practice
was not, due to a prior, separate omission. It ends with recommendations to address these
challenges, including reducing opacity, standardising iterative investigations and enforcing
technical trainings.